Harassment Cases

HOWARD H. PIERCE, SR., Plaintiff v. THE ATLANTIC GROUP, INC, d/b/a/ DZ ATLANTIC, DAY & ZIMMERMANN LLC OF PENNSYLVANIA and DAY & ZIMMERMAN LLC d/b/a/ DZ ATLANTIC GROUP and/or DZ ATLANTIC, and DUKE ENERGY CAROLINAS, LLC, Defendants No. COA11-494 (Filed 21 February 2012) 1. Employer and Employee—wrongful discharge—Retaliatory Employment Discrimination Act—initiation of inquiry The trial court did not err by dismissing plaintiff’s complaint under N.C.G.S. § 1A-1, Rule 12(b)(6) for violation 'of the Retaliatory Employment Discrimination Act. Plaintiff called defendant Duke’s ethics hotline to report the retaliatory treatment he had been receiving and not to report a concern regarding occupational health and safety in the context of his employment with defendant Atlantic. These allegations were insufficient to constitute the initiation of an inquiry pursuant to N.C.G.S. § 95-241(a). 2. Employer and Employee—wrongful discharge—failure to show violation of law or public policy The trial court did not err by dismissing plaintiffs wrongful discharge claim. Plaintiff’s allegations failed to show that defendants ever violated their Occupational Safety and Health Adminstration obligations, including 13 N.C. Admin. Code 07F .0901, et seq., and plaintiff’s assertions that defendants’ termination of his employment violated law or public policy based on provisions of the administrative code that were yet to become effective did not remedy this deficiency in plaintiff’s pleadings. 3. Emotional Distress—negligent infliction of emotional distress—intentional infliction of emotional distress The trial court did not err by dismissing plaintiff’s claims of negligent and intentional infliction of emotional distress. Plaintiff’s statement that he began to experience serious on and off the job stress that severely affected his relationship with his wife and family members was insufficient to support these claims. 4. Libel and Slander—libel per se—failure to allege email or report susceptible of two meanings—libel per quod The trial court did not err by dismissing plaintiff’s defamation claim. Plaintiff’s complaint, alleging that defendant falsely contended that plaintiff falsified his time card or reported plaintiff to the Nuclear Regulatory Commission did not set forth a cause of action for libel per se. Further, plaintiff’s complaint was insufficient to state a claim because the complaint did not allege that the email or report were susceptible of two meanings. Finally, plaintiff’s allegation that the alleged defamation damaged plaintiff’s economic circumstances did not fairly inform defendants of the scope of plaintiff’s libel per quod claim. Appeal by plaintiff from order entered 3 February 2011 by Judge Robert F. Floyd, Jr., in Robeson County Superior Court. Heard in the Court of Appeals 27 October 2011. Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner, and Behan Law, by Kathleen A. Behan, for the plaintiff Littler Mendelson, P.C., by Jerry H. Walters, Jr., and Julie K. Adams, for defendant, The Atlantic Group, Inc. d/b/a/ DZ Atlantic. Ogletree, Deakins, Nash, Smoak & Stewart, P.G., by Robert M. Bisanar and Michael L. Wade, Jr., for defendant, Duke Energy Carolinas, LLC. THIGPEN, Judge. The employment of Howard H. Pierce, Sr., (“Plaintiff”) was terminated by The Atlantic Group, Inc., et al., (“Defendant Atlantic”). Defendant Atlantic is an engineering, construction and maintenance contractor providing services to Duke Energy Carolinas, LLC, (“Defendant Duke Energy”) (together, “Defendants”). Plaintiff filed a complaint alleging the following: In terminating Plaintiffs employment, Defendants violated the Retaliatory Employment Discrimination Act; Plaintiff was wrongfully discharged in violation of public policy and N.C. Gen. Stat. § 95-126, et seq., which governs the occupational health and safety of North Carolina employees; Defendants’ actions amounted to negligent and intentional infliction of emotional distress; and Defendants defamed Plaintiff. On appeal, we must determine whether the trial court erred by dismissing Plaintiffs complaint pursuant to Defendants’ Rule 12(b)(6) motion. We affirm the order of the trial court. I: Factual and Procedural Background The record tends to show the following: Plaintiff was hired by Defendant Atlantic in 2001, and held numerous positions with Defendant Atlantic, including supervisor, certified crane operator, and rigger. Over the course of eight years with Defendant Atlantic, Plaintiff was promoted from the position of rigger to lifting rigger supervising coordinator. Plaintiff’s pay was, over time, increased to the rate of forty-four dollars per hour. Plaintiff reported to both Defendant Atlantic and Defendant Duke Energy. In February 2009, Plaintiff received a memorandum from Defendant Duke Energy alerting employees that new regulations, 13 N.C. Admin. Code 07F .0901, et seq., would affect crane operators and riggers, requiring them to be certified. The regulations were scheduled to take effect on 1 October 2009. Plaintiff brought the memorandum to the attention of his supervisors and proposed a process by which the operators could be trained and certified in a way which would not interfere with the operations of the plant during its busiest times. Plaintiff did not receive a response to his proposal. Plaintiff, however, continued to raise the issue of certification on a weekly basis, but Plaintiffs proposal and concerns were not addressed. In late March 2009, Defendant Atlantic asked Plaintiff to take a twenty-eight day vacation break from his position at the McGuire Duke Energy Nuclear Power Plant (“McGuire”) where he was currently working. On 30 March 2009, Plaintiff began his vacation, expecting to return to his former position as supervisor at a pay rate of forty-four dollars per hour, as he was assured by a staffing employee with Defendant Atlantic, Ms. Angie Green (“Ms. Green”). Shortly after beginning his vacation, Plaintiff received a phone call from Ms. Green, who asked Plaintiff whether he would be willing to assist Defendant Atlantic in staffing a fueling outage at Oconnee Nuclear Power Plant (“Oconnee”). Plaintiff agreed to assist on the condition that Ms. Green contact his supervisors at both Defendant Atlantic and Defendant Duke Energy to ensure that he would not lose his supervisory level position and salary upon his return to McGuire. Ms. Green agreed. Ms. Green later contacted Plaintiff, explaining that his supervisors had approved, but for purposes of the Oconnee assignment, Plaintiff would only be paid twenty-seven dollars per hour. Plaintiff accepted the temporary pay reduction. Several weeks into the Oconnee assignment, Ms. Green contacted Plaintiff, requesting that Plaintiff return to McGuire as an advanced rigger rather than a supervisor, at a pay rate of twenty-eight dollars per hour. Plaintiff was informed that this demotion would be temporary until the conclusion of the “fall outage” period, at which time Plaintiff would return to his prior position. Plaintiff continued to be concerned about the certification of the operators as required by 13 N.C. Admin. Code 07F .0901, et seq., and “feared that Defendants’ explanations for his demotion in pay were a pretext in order to remove him from a supervisor position.” Plaintiff was told that since he was no longer a supervisor, “the issue of the certification was not his to address.” On 24 August 2009, Plaintiff called Defendant Duke Energy’s “ethics hotline” and reported the alleged “retaliatory treatment” he had received. Plaintiff believed the hotline was a confidential resource. However, Plaintiff was asked to provide his identity and the names of “persons who concerned him.” Plaintiff named Mike Henline (“Henline”) of Defendant Atlantic, Jimmy Shelton (“Shelton”) of Defendant Duke Energy, Donny Lawing (“Lawing”) of Defendant Duke Energy, Maurice Horn (“Horn”) of Defendant Duke Energy, and Joe Bates (“Bates”) of Defendant Duke Energy. Plaintiff called the hotline on multiple other occasions after his first call. During September of 2010, Plaintiff felt that “workplace conditions became increasingly adverse.” Specifically, Plaintiff felt that his schedule was being arbitrarily changed and interrupted, such that he could not get sufficient hours to support his family. On Friday, 19 September 2010, Plaintiff was advised that on Monday, 21 September 2010, Plaintiff would begin on the nightshift. As a result of the change, Plaintiff filled out his timecard on Friday morning—rather than Monday morning, as was his usual practice— estimating the hours he was required to work on Friday based on his instructions from Shelton. Shortly after filling out his timecard, Plaintiff learned that his wife had possibly had a heart attack, and she had been transported to the hospital. Plaintiff left the plant to go to the hospital and called Mr. Leroy Price (“Price”) to explain his absence. Price advised Defendant to “see to his wife, and ... the time card issues would be resolved the following week.” On the evening of 19 September 2009, a “Site Maintenance Lifting Coordinator” for Defendant Duke Energy sent an email to Defendant Atlantic stating, “I have document proof that [Plaintiff] has falsified his timesheet . . . [Henline] is in the process of pulling [Plaintiffs] badge.” However, at Plaintiffs, request, Henline later corrected Plaintiffs timecard and initialed his corrections. Henline assured Plaintiff that “he would suffer no adverse consequences from the mistakes in completing the card.” On Monday, 21 September 2009, Plaintiff called Henline and was told not to report for his shift but to come in the next day. Plaintiff was told “he would be written up but that the timecard would be corrected.” On 23 September 2009, Plaintiff was again told not to come in but to report the next morning. When Plaintiff arrived on 24 September 2009, Henline and Bates terminated Plaintiffs employment, asked him to return his badge, and removed Plaintiff from the premises. Plaintiff reviewed the documents regarding his termination and discovered that the basis of his termination was “falsification of a time-card[.]” Defendant Duke Energy reported Plaintiff to the Nuclear Regulatory Commission, barring Plaintiff from “unescorted access to facilities around the nation.” Plaintiff alleges this “per manently damag[ed] his reputation and his ability to obtain suitable similar employment.” Plaintiff appealed his termination in human resources, but his appeal was unsuccessful. On 16 August 2010, Plaintiff filed a complaint against Defendants. Both Defendant Duke Energy and Defendant Atlantic filed motions for an extension of time to file their answers, and both Defendants received a thirty day extension. Defendant Duke Energy filed their answer on 12 October 2010 and alleged that Plaintiffs complaint failed to state a claim upon which relief may be granted. Defendant Atlantic also filed an N.C. Gen Stat § 1A-1, 12(b)(6) motion to dismiss Plaintiffs complaint on 20 October 2010. On 17 November 2010, Plaintiff filed a motion to amend the complaint. In Plaintiffs amended complaint, also filed 17 November 2010, he realleges the following: Defendants violated the Retaliatory Employment Discrimination Act; Plaintiff was wrongfully discharged in violation of public policy and N.C. Gen. Stat. § 95-126, et seq., which governs the occupational health and safety of North Carolina employees; Defendants’ actions amounted to negligent and intentional infliction of emotional distress; and Defendants defamed Plaintiff. Defendant Duke Energy filed an additional N.C. Gen Stat § 1A-1, 12(b)(6) motion to dismiss on 28 November 2010. On 3 February 2011, the trial court entered an order granting Defendants’ N.C. Gen Stat § 1A-1, 12(b)(6) motion to dismiss Plaintiff’s complaint. From this order, Plaintiff appeals. II: Standard of Review “On a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, the standard of review is whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory.” Stunzi v. Medlin Motors, Inc., _ N.C. App. _, _, 714 S.E.2d 770, 773 (2011) (quotation omitted). “The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief.” Id. (quotation omitted). Dismissal under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: “(1) the complaint on its face reveals that no law supports the plaintiff’s claim; (2) the complaint on its face reveals the absence of facts sufficient to make a good claim; or (3) the complaint discloses some fact that necessarily defeats the plaintiff’s claim.” Id. at _, 714 S.E.2d at 773-74. III: Motion to Dismiss In Plaintiffs argument on appeal, he contends the trial court erred by dismissing his complaint against Defendants pursuant to Defendants’ N.C. Gen Stat § 1A-1, 12(b)(6) motion. Specifically, Plaintiff argues that the allegations in each of the five counts in Plaintiffs complaint, treated as true, are sufficient in this case to state a claim upon which relief may be granted. We address each count in turn, and ultimately conclude the trial court did not err by dismissing Plaintiffs complaint. A: Retaliatory Employment Discrimination Act Plaintiff first contends the trial court erred by dismissing Plaintiffs allegation that Defendants violated the Retaliatory Employment Discrimination Act (“REDA”). We disagree. N.C. Gen. Stat. § 95-241(a) (2011) provides that “[n]o person shall discriminate or take any retaliatory action against an employee because the employee in good faith does or threatens to . . . [f]ile a claim or complaint, initiate any inquiry, investigation, inspection, proceeding or other action, or testify or provide information to any person with respect to . . . Article 16 of this Chapter[,]” the Occupational Safety and Health Act of North Carolina (“OSHA”), N.C. Gen. Stat. § 95-126 (2011), et. seq. “In order to state a claim under REDA, a plaintiff must show (1) that he exercised his rights as listed under N.C. Gen. Stat. § 95-241(a), (2) that he suffered an adverse employment action, and (3) that the alleged retaliatory action was taken because the employee exercised his rights under N.C. Gen. Stat. § 95-241(a).” Wiley v. UPS, Inc., 164 N.C. App. 183, 186, 594 S.E.2d 809, 811 (2004) (citation omitted). An adverse action includes “the discharge, suspension, demotion, retaliatory relocation of an employee, or other adverse employment action taken against an employee in the terms, conditions, privileges, and benefits of employment.” N.C. Gen. Stat. § 95-240(2) (2011). “If plaintiff presents a prima facie case of retaliatory discrimination, then the burden shifts to the defendant to show that he ‘would have taken the same unfavorable action in the absence of the protected activity of the employee.’ ” UPS, Inc., 164 N.C. App. at 186, 594 S.E.2d at 811. (quoting N.C. Gen. Stat. § 95-241(b)). “Although evidence of retaliation in a case such as this one may often be completely circumstantial, the causal nexus between protected activity and retaliatory discharge must be something more than speculation.” Id. at 187, 594 S.E.2d at 811 (quotation omitted). In this case, the parties do not dispute that Plaintiff “suffered an adverse employment action[.]” Id. at 186, 594 S.E.2d at 811. However, the parties dispute whether Plaintiff “exercised his rights as listed under N.C. Gen. Stat. § 95-241(a)” and whether “the alleged retaliatory action was taken because the employee exercised his rights under N.C. Gen. Stat. § 95-241(a).” Id. Plaintiff contends he exercised his rights as listed under N.C. Gen. Stat. § 95-241 (a) by “initiating] any inquiry. . . with respect to” OSHA. N.C. Gen. Stat. § 95-241(a). Specifically, Plaintiff states that he initiated an inquiry when he “submitted a proposed plan that would provide certification of the crane operators in compliance with the upcoming regulatory change.” Plaintiff further contends, “[t]hereafter, [Plaintiff] complained to his [Defendant Atlantic] and [Defendant Duke Energy] supervisors weekly of [Defendants] failure to begin certifying crane operators.” Plaintiffs complaint alleges the following with regard to Plaintiffs initiation of an inquiry pursuant to N.C. Gen. Stat. § 95-241(a): 34. Defendants’ decision to terminate [Plaintiffs] employment was in retaliation for his making complaints and providing information with regard .to an ongoing workplace situation with regard to Occupational Safety and Health issues affecting nuclear power facilities in North Carolina operated by Defendants, including but not limited to the McGuire Nuclear Facility. 35. By communicating with his supervisors on numerous occasions concerning safety and health and training issues, and with the Duke Ethics Hotline, [Plaintiff] exercised his rights as listed under N.C. Gen. Stat. § 95-241(a). Our Courts have not defined or addressed what it means to “initiate [an] inquiry” pursuant to N.C. Gen. Stat. § 95-241(a) with respect to OSHA. Id. We find the logic of several decisions of federal courts persuasive authority as to the definition of initiating an inquiry. See State v. McDowell, 310 N.C. 61, 74, 310 S.E.2d 301, 310 (1984) (stating that federal decisions, with the exception of the United States Supreme Court, are not binding upon this Court; however, State courts should treat “decisions of the United States Supreme Court as binding and accordf] to decisions of lower federal courts such persuasiveness as these decisions might reasonably command”); see also Signature Dev., LLC v. Sandler Commer. at Union, L.L.C., _ N.C. App. _, _, 701 S.E.2d 300, 307 (2010) (stating; “[a]lthough, as an unpublished case, [it] does not establish binding legal precedent, we are persuaded by [the] Court’s reasoning in that case”). The United States District Court for the Middle District of North Carolina addressed the question of what it means to initiate an inquiry pursuant to N.C. Gen. Stat. § 95-241(a) in the context of OSHA in Jurrissen v. Keystone Foods, LLC, 2008 U.S. Dist. LEXIS 63901, 15-16 (2008). The Court stated: As noted, REDA states that no person shall take any retaliatory action against an employee because the employee “file[s] a claim or complaint, initiate[s] any inquiry, investigation, inspection, proceeding or other action, or testifies] orprovidefs] information to any person with respect to . . . [OSHANC].” N.C. GEN. STAT. § 95-241(a) (emphasis added). By its plain language, it is clear that REDA does not limit protected activities to the sole act of filing a formal claim under OSHANC. At the other end of the-spectrum, however, courts have held that merely talking to an internal supervisor about potential safety concerns is not a “protected activity” under REDA. Id.; see also, e.g., Delon v. McLaurin Parking Co., 367 F. Supp. 2d 893, 902, aff’d, 146 Fed. Appx. 655 (2005) (“The complaint that Plaintiff made to [a manager] [i]s not . . . protected under REDA[;] [r]ather, it was merely a complaint to a manager about a supervisor”); Cromer v. Perdue Farms, Inc., 900 F. Supp. 795, 801 n.6 (1994), aff’d, 1995 U.S. App. LEXIS 25327 (1995) (explaining that “North Carolina has never recognized a cause of action for wrongful discharge in favor of employees who orally complained to their employers about unsafe working conditions” and noting that the plaintiff “did not initiate a complaint with the Occupational Safety and Health Review Commission or threaten to initiate any such complaint”); Whitings v. Wolfson Casing Corp., 173 N.C. App. 218, 222, 618 S.E.2d 750, 753 (2005) (holding the plaintiff’s act of requesting that her employer pay for a medical evaluation of a work-related inj

Joulé, Inc., & others vs. Randi Simmons & another. Suffolk. November 1, 2010. March 10, 2011. Present: Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ. Anti-Discrimination Law, Arbitration, Termination of employment. Contract, Arbitration. Employment, Discrimination. Practice, Civil, Interlocutory appeal. Massachusetts Commission Against Discrimination. Massachusetts Arbitration Act. Federal Arbitration Act. Public Policy. This court concluded that even where an employee has signed a presumptively valid employment agreement requiring arbitration of any claim arising from the employee’s employment, including a claim of discrimination, the Massachusetts Commission Against Discrimination (MCAD) has authority under G. L. c. 151B, § 5, to conduct its own independent proceeding based on such an employee’s complaint of discrimination, and that nothing in such an arbitration provision prohibits the employee from testifying before the MCAD or from providing information, materials, or responses that are necessary for investigation of the case. [93-98] In a civil action seeking to compel arbitration of a claim of discrimination in employment, the judge erred in granting a stay of further proceedings, where, assuming the validity of the arbitration provision in an employment agreement between the parties, the effect of such a stay was to place in the Massachusetts Commission Against Discrimination primary jurisdiction over the employee’s discrimination-based claims rather than to enforce the agreement to arbitrate. [98-100] Civil action commenced in the Superior Court Department on November 19, 2009. A motion to intervene was heard by Thomas E. Connolly, J., and a motion to compel arbitration was heard by Paul E. Troy, J. The Supreme Judicial Court granted an application for direct appellate review. Thomas A. Reed (Eugene J. Sullivan, III, with him) for the plaintiffs. Barbara A. Robb (Nancy S. Shilepsky with her) for the defendant. Catherine C. Ziehl for the intervener. The following submitted briefs for amici curiae: Andrew M. Abraham & J. Michael Conley for The Massachusetts Academy of Trial Attorneys. John Pagliaro & Martin J. Newhouse for New England Legal Foundation & another. Robert S. Mantell for Massachusetts Employment Lawyers Association. Martha Coakley, Attorney General, & Maura T. Healey & Jonathan B. Miller, Assistant Attorneys General, for the Commonwealth. Anne L. Josephson & Heidi S. Alexander for American Civil Liberties Union of Massachusetts & others. Joulé Technical Staffing, Inc.; John G. Wellman; Kristin Motta Zwickau; and Kari Burke. Massachusetts Commission Against Discrimination, intervener. Botsford, J. The plaintiff Joulé Technical Staffing, Inc. (Joulé), employed the defendant, Ranch Simmons, from 2008 to 2009. Both were parties to an employment agreement containing an arbitration provision that purported to cover claims of employment discrimination expressly. Simmons was terminated from her position in July, 2009. Simmons, who claims that her termination was based on discrimination and retaliation by Joulé, did not file a claim for arbitration under the arbitration provision, but did file a complaint of discrimination with the Massachusetts Commission Against Discrimination (MCAD). In response, Joulé filed in the Superior Court a complaint and a motion to compel arbitration of Simmons’s discrimination claim. Before us is Joulé’s interlocutory appeal from the order of a Superior Court judge that in principal part denied Joulé’s motion to compel arbitration and stayed all further proceedings in the Superior Court case pending the outcome of the MCAD proceeding. We conclude that pursuant to G. L. c. 15IB, § 5, the MCAD may conduct its own, independent proceeding based on Simmons’s complaint. With respect to Joulé and Simmons, however, if the arbitration provision in Simmons’s employment agreement is valid — an issue that remains to be resolved — Joulé has a right to compel arbitration of a dispute between it and Simmons concerning her claim. Accordingly, we vacate the order of the Superior Court and remand for further proceedings. 1. Facts and procedural history. Joulé is in the business of providing staffing and business systems support to companies in various States. Joulé hired Randi Simmons for its Boston office in February, 2008, as “selling branch manager.” In accepting the position, Simmons turned down another full-time job offer with another company. At some point after she began to work for the company, Joulé provided Simmons with a document titled “Employment Agreement with Confidentiality, Non-Competition, and Arbitration Provisions” (employment agreement, or agreement). The agreement contains an arbitration provision, quoted in the margin. Simmons had not received a copy or been informed of the employment agreement before starting her job. The agreement provides that Simmons had a right to consult an attorney prior to signing it, but that she would not “be offered employment until [she] sign[ed] and retum[ed] this [agreement.” Simmons did not sign the agreement immediately but, rather, delayed until a “specific request was made for it by the human resources department,” because she “felt apprehensive and uncomfortable about certain restrictions therein.” At the time Simmons was hired and thereafter presented with the employment agreement, she was pregnant, and the baby was bom in due course. Simmons alleges that she was subjected to a hostile work environment and was denied a promotion and salary increase because of Joulé’s biases against pregnant women and against women with children. She complained about the issue to Kristin Motta Zwickau, the director of Joulé’s Boston office. On July 30, 2009, Joulé terminated Simmons’s employment. On August 25, 2009, Simmons filed a complaint with the MCAD asserting discrimination on the basis of sex and pregnancy in violation of G. L. c. 151B, §§ 4 (1) and (11A); G. L. c. 149, § 105D; Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (2006) (Title VII); and retaliation in violation of G. L. c. 15IB, § 4 (4). As previously stated, Simmons did not initiate arbitration proceedings pursuant to the arbitration provision in the employment agreement. On November 19, 2009, Joulé filed its complaint and motion to compel arbitration in the Superior Court. Joulé requested the court to declare that the agreement was valid and binding on Simmons; that Simmons was required to submit to arbitration any claim against Joulé based on the facts alleged in her MCAD complaint; and that Simmons was precluded from acting as a litigant or party in any MCAD proceeding against Joulé. Simmons opposed the motion to compel arbitration, arguing that the arbitration provision in the agreement was unconscionable and did not unmistakably cover discrimination claims; and that in any event, her MCAD complaint or charge could proceed and she was entitled to “participate in the proceeding as the complainant.” The MCAD thereafter filed an emergency motion to intervene that was allowed by a Superior Court judge. After a hearing, a different Superior Court judge (motion judge) accepted the MCAD’s argument that its authority to conduct an investigation and adjudication of Simmons’s claim of discrimination was not affected by the parties’ agreement to arbitrate, and ordered that Joulé’s motion to compel arbitration be denied, that the Superior Court action be stayed pending resolution of the MCAD’s proceeding, and that the arbitration provision in the employment agreement did not preclude Simmons from participating as a party in the pending MCAD matter. Joulé appealed from the motion judge’s order pursuant to G. L. c. 251, § 18 (a) (1). We granted the applications for direct appellate review filed by Simmons and the MCAD. 2. Discussion. General Laws c. 251, § 18 (a) (1), authorizes a party to appeal directly from the denial of an application to compel arbitration. See, e.g., Warfield v. Beth Israel Deaconess Med. Ctr., Inc., 454 Mass. 390, 394 (2009) (Warfield). All parties agree, therefore, that Joulé’s interlocutory appeal from the motion judge’s order is properly before us. We review the judge’s order de novo. See Feeney v. Dell Inc., 454 Mass. 192, 199 (2009), citing Commonwealth v. Philip Morris Inc., 448 Mass. 836, 844 (2007). See also Warfield, supra at 395 (motion to compel arbitration treated summarily and judge’s order reviewed de novo). a. Effect of the employment agreement’s arbitration provision on the MCAD. We consider first the effect of the arbitration provision on the MCAD’s ability to pursue its investigation and resolution of Simmons’s MCAD complaint. “The MCAD was established to enforce the Commonwealth’s antidiscrimination laws.” Stonehill College v. Massachusetts Comm’n Against Discrimination, 441 Mass. 549, 563, cert. denied sub nom. Wilfert Bros. Realty Co. v. Massachusetts Comm’n Against Discrimination, 543 U.S. 979 (2004) (Stonehill College). The MCAD has the power to investigate claims of discrimination on its own, but also has the authority — and generally follows this course — to investigate and pursue complaints filed by individuals. See G. L. c. 151B, § 5. In the latter circumstance, although the complaint is filed by the individual, the agency proceeds in its own name. See Stonehill College, supra (in proceeding under G. L. c. 151B, § 5, “it is the MCAD, and not the complainant, that prosecutes the discrimination claim”). We review briefly the MCAD’s procedure in investigating such complaints. See generally G. L. c. 151B, § 5. Any individual alleging discrimination in employment (or otherwise), or the Attorney General, may file a complaint with the MCAD. 804 Code Mass. Regs. § 1.10(1) (1999). The chairperson of the MCAD then designates a single commissioner to investigate the complaint promptly. 804 Code Mass. Regs. § 1.10. If the investigating commissioner finds no probable cause for crediting the allegations of the complaint, the commissioner issues a lack of probable cause finding and dismisses the complaint. 804 Code Mass. Regs. § 1.15(7)(b) (2008). If, however, the commissioner determines that probable cause does exist for crediting the allegations, he or she issues a probable cause finding. Id. At that point, the investigating commissioner endeavors to “eliminate the unlawful practice complained of through conference, conciliation and persuasion.” 804 Code Mass. Regs. § 1.18 (2005). If conciliation is unsuccessful it may be terminated, see 804 Code Mass. Regs. § 1.18(l)(d), and if the investigating commissioner determines that the public interest requires a certification of issues to public hearing, the commissioner issues a complaint in the name of the MCAD. 804 Code Mass. Regs. § 1.20(3) (2004). Such a public hearing is conducted by an MCAD commissioner other than the investigating commissioner, or by a designated hearing officer, or by the full commission. 804 Code Mass. Regs. § 1.21(1) (1999). The case is prosecuted by an MCAD attorney or other staff member, or in some instances by the complainant’s attorney whom the MCAD has designated its agent for the purpose. 804 Code Mass. Regs. § 1.09(5)(a), (b) (1999). A complainant may be permitted to intervene as a party in the case, in the commissioner’s discretion, and also be allowed to testify at the hearing. 804 Code Mass. Regs. § 1.20(4) (2004). If, after the hearing, the MCAD finds that the respondent employer has engaged in an unlawful practice as defined in the statute, the MCAD may require the respondent to “cease and desist from such unlawful practice,” and may grant relief specific to the complaining individual such as “hiring, reinstatement or upgrading of [the] employee[], with or without back pay ... as, in the judgment of the [MCAD], will effectuate the purposes of this chapter.” G. L. c. 151B, § 5. See 804 Code Mass. Regs. § 1.22 (1999). Under both Federal and Massachusetts arbitration statutes, it is clear that parties can agree to arbitrate claims of employment discrimination. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26-27 (1991); Warfield, 454 Mass, at 395-396; Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 170 F.3d 1, 17-21 (1st Cir. 1999). By its express terms, the arbitration provision in Simmons’s employment agreement is governed both by the Massachusetts Arbitration Act, G. L. c. 251, § 2 (MAA), and by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. (2006) (FAA). For agreements governed by the FAA, the statute’s presumption of arbitrability means that “in applying general state-law principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the [FAA] . . . due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration” (citation omitted). Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. 468, 475-476 (1989). In Warfield, supra at 398, we acknowledged this point, but also held that, in view of the strong public policy against discrimination in employment, any agreement to arbitrate claims of discrimination must be stated clearly and unmistakably. Even where there is a clear and unmistakable provision in an employment agreement requiring arbitration of discrimination claims, however, it would not affect the MCAD’s authority under G. L. c. 151B, § 5. “The FAA directs courts to place arbitration agreements on equal footing with other contracts, but it ‘does not require parties to arbitrate when they have not agreed to do so’. . . . ‘Arbitration under the [FAA] is a matter of consent, not coercion.’ ” EEOC v. Waffle House, Inc., 534 U.S. 279, 293, 294 (2002) (Waffle House), quoting Volt Info. Sciences, Inc. v. Trustees of Leland Stanford Jr. Univ., 489 U.S. at 478, 479. The MCAD is not a party to the employment agreement at issue here, has not agreed to arbitration of Simmons’s MCAD complaint, and cannot be bound by the agreement’s arbitration provision. “[T]he proarbitration policy goals of the FAA do not require the agency to relinquish its statutory authority if it has not agreed to do so.” Waffle House, supra at 294. Accordingly, assuming the validity of the agreement’s arbitration provision, nothing in it precludes the MCAD from proceeding with its investigation and resolution of Simmons’s discrimination complaint — including, if the evidence warrants, granting relief specific to Simmons. This conclusion is consistent with, and advances, the broad statutory responsibility and authority of the MCAD to investigate and remedy instances of discrimination in the Commonwealth. See Stonehill College, 441 Mass, at 562-563, and cases cited (“While the main object of a judicial proceeding under [G. L. c. 15IB,] § 9[,] is to recover damages for the individual victim of unlawful discrimination, . . . the primary purpose of an administrative proceeding before the MCAD is to vindicate the public’s interest in reducing discrimination in the workplace by deterring, and punishing, instances of discrimination by employers against employees” [citation omitted]). See also Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 534 (2001), quoting Lynn Teachers Union, Local 1037 v. Massachusetts Comm’n Against Discrimination, 406 Mass. 515, 523 (1990) (“the MCAD ‘has been charged with the task of combating discrimination in the Commonwealth’ ”); College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156,170 (1987) (“commission is given broad authority to remedy discrimination”); 804 Code Mass. Regs. § 1.13(4) (1999) (“No waiver agreement signed by any individual shall affect the [MCAD’s] right and statutory duty to enforce [ ] G. L. c. 151B . . . or to investigate any complaint filed before it”). The United States Supreme Court reached the same result in the Waffle House case where an employee alleging handicap discrimination declined to initiate arbitration proceedings mandated by his employment agreement, but instead timely filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) under Title VII. Waffle House, 534 U.S. at 283, 285. The Court concluded that the EEOC was authorized to bring its own enforcement action against the employer, notwithstanding the arbitration agreement between the employer and employee. Id. at 291-292, 296. It further stated that “once a charge is filed ... the EEOC is in command of the process. . . . Absent textual support for a contrary view, it is the public agency’s province — not that of the court — to determine whether public resources should be committed to the recovery of victim-specific relief.” Id. at 291-292., Joulé appears to agree both that the MCAD is empowered and entitled to pursue investigation of Simmons’s discrimination complaint under G. L. c. 151B, § 5, and also that nothing in the arbitration provision of the parties’ employment agreement does, or could, preclude Simmons from filing a complaint with the MCAD. Joulé argues, however, that beyond filing a complaint with the MCAD, under the arbitration provision, Simmons is barred from being a litigant or party to the MCAD proceeding, and that the motion judge erred in ruling otherwise. Again, if the arbitration provision in Simmons’s employment agreement is valid (see Part 2[b], infra), we would agree. When a complainant files a request to intervene, see 804 Code Mass. Regs. § 1.20(4), she must certify her “allegations of discrimination.” 804 Code Mass. Regs. § 1.20(3)(a) (2004). Thus, in essence, the complainant is required to advance a claim of discrimination in her own name. Allowing Simmons to seek to intervene as a party in the MCAD proceeding and to assert directly her individual claim of discrimination would contravene the requirement of the arbitration provision that she resolve her own disputes with Joulé through arbitration. The question whether Simmons may participate in the MCAD proceeding is a different matter. Nothing in the arbitration provision prevents her from testifying before the MCAD, see G. L. c. 151B, § 5, or from “providing] information, materials or responses to [Joulé’s] submissions which are necessary for investigation of the case” to obviate administrative foreclosure in accordance with 804 Code Mass. Regs. § 1.15(5)(b) (1999). b. Stay of court proceedings. It is Joulé’s position that the motion judge erred in granting the stay of further proceedings in its Superior Court action because, in accordance with War-field, the terms of the arbitration provision are clear and unmistakable, and Simmons lacks any ground sufficient to revoke her agreement to arbitrate. See Warfield, 454 Mass, at 398. We agree that the stay should not have been granted, but for different reasons. The motion judge assumed in effect that the arbitration provision was valid and, by staying Joulé’s court action until the MCAD concluded its proceeding, appears to have adopted the premise advanced by the MCAD, namely, that the agency’s proceeding takes precedence over any arbitration. However, “when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA.” Preston v. Ferrer, 552 U.S. 346, 349-350 (2008). In staying further proceedings in Joulé’s action to enforce the parties’ agreement to arbitrate, the motion judge in effect placed primary jurisdiction over Simmons’s discrimination-based claims in the MCAD. This was error. If an employer and employee enter into a valid and sufficiently clear agreement to arbitrate any and all disputes relating to discrimination, then the party seeking arbitration of such a dispute is entitled to have the agreement enforced. See Commonwealth v. Philip Morris Inc., 448 Mass. 836, 844-849 (2007) (arbitration provision enforced where dispute “falls squa